Long v. Johnson

• Citation: 381 N.E.2d 93,177 Ind.App. 663
• Decision Date: 05 October 1978
• Docket Number: No. 1-277A31,1-277A31
• Parties: Harriet Cherie LONG, age six (6) years b/n/f Raymond Long a/n/f parent, natural guardian, Appellant, v. Edward M. JOHNSON, M. D., Union Hospital, Inc., Appellees.
• Court: Court of Appeals of Indiana

Page 93

381 N.E.2d 93

177 Ind.App. 663

Harriet Cherie LONG, age six (6) years b/n/f Raymond Long a/n/f parent, natural guardian, Appellant, v. Edward M. JOHNSON, M. D., Union Hospital, Inc., Appellees.

No. 1-277A31.

Court of Appeals of Indiana, First District.

Oct. 5, 1978.

George B. Tofaute, Geoffrey G. Creason, Tofaute & Spelman, Terre Haute, for appellant.

Jon D. Krahulik, John P. Price, Bingham, Summers, Welsh & Spilman, Geoffrey Segar, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

LYBROOK, Presiding Judge.

In a medical malpractice action plaintiff Harriet Cherie Long (Cherie) by her next friend (and father) Raymond Long appeals from a judgment entered on a jury verdict in favor of defendant Edward M. Johnson, M.D. (Johnson) and from the trial court's entry of judgment for defendant Union Hospital (Union) notwithstanding the jury's verdict against Union and in favor of Cherie.

The facts most favorable to the jury's verdict in favor of Cherie and against Union, and to the verdict (and the trial court's judgment) against Cherie and in favor of Johnson, are as follows: Cherie's mother, Wanda Long (Wanda), arrived at Union Hospital and was admitted to the labor room at 4:45 A.M. on September 17, 1968, to give birth to her thirteenth child, Cherie. All of Wanda's other children had been born vaginally and without complication; furthermore, none had ever experienced any abnormal physical or mental impairment.

Wanda was "prepped," and Johnson performed a vaginal examination at 5:05 A.M. to determine her progress. Johnson then artificially ruptured Wanda's amniotic membrane. ¹ At that time Wanda's bag of water contained clear amniotic fluid. The quantity was noted as "a very large amount." Johnson then told her, "It will be a little while," and he left, saying that he was going to the doctor's room. As he walked out he told the nurse on duty, "Watch her contractions; keep an eye on the heart tones." In fact, monitoring of expecting patients in the hospital was regularly the duty of the nursing staff, unless the attending physician was actually present and was personally monitoring the patient.

By 7:05 A.M. Wanda's amniotic fluid had become stained with meconium, which, according to the testimony of various experts, was a "danger sign," signaling that the baby, while in the uterus, may have undergone "an episode of distress which resulted in the involuntary emptying of the bowel of the baby into the amniotic fluid . . . " The nurse informed Johnson of the meconium staining, and he, who was not in the labor room at the time, proceeded to that room where he performed another vaginal examination. At this time Johnson could find nothing out of the ordinary, other than the meconium staining.

At 8:00 A.M. Nurse Connor noted on Wanda's labor room chart that her contractions were irregular; however, Wanda remarked at that time that she felt comfortable. At 8:05 A.M. or 8:15 A.M. Johnson performed another vaginal examination, and Nurse Connor noted that Wanda's dilation was still at four centimeters, where it had been since 5:00 A.M. The fetal heart tones were noted as good.

At 8:20 A.M. Nurse Connor began administration of the drug Pitocin ² through intravenous drip in order to accelerate the labor process. Pitocin was described as a very dangerous drug; further testimony showed that Pitocin was commonly used in Terre Haute in 1968, to "induce" labor. One recognized hazard in using Pitocin is overstimulation of the uterus, which can result in tearing or rupturing of the uterine wall, and for this reason all patients receiving Pitocin must be monitored continuously and very closely.

Expert testimony established that in Terre Haute, in 1968, (when Cherie was born) the only way of monitoring a patient's contractions was by having a nurse sit beside the patient with her hand on the patient's abdomen to determine the frequency and intensity of the contractions. Since the nurses at Union were charged with the duty of monitoring patients in labor, they were responsible likewise for monitoring the effects of Pitocin on expectant mothers, unless the attending physician was present and personally monitoring the patient.

At this point we reach a most critical dispute in the facts of this case. Nurse Connor, who apparently attended Wanda throughout the crucial period, had no recollection of its events; in her testimony she had to rely almost exclusively on the hospital's records and notes, which were taken, in part, by her. Wanda, the only other person who was "present" during the Entire critical period ³ (approximately 8:20 A.M. when the Pitocin was started, to 10:20 A.M., when Cherie was born) testified that no one, neither the doctor nor the nurse, continuously monitored her contractions in either the labor room or the delivery room by placing a hand on her abdomen; instead the nurses would ask Wanda whether she was experiencing any pain. Her hospital chart reflected no monitoring. Wanda did testify that she "dozed" from time to time, but that she would always wake up when she was touched, or when she would have a contraction.

Although the Pitocin had been administered pursuant to Johnson's orders, he was not present when the drug was started, according to Wanda's testimony.

In September of 1968 there was no hospital regulation requiring the prescribing doctor to be present when Pitocin is given; the hospital only required that the prescribing doctor be somewhere in the hospital during its administration.

According to Wanda's hospital chart, as interpreted by expert testimony, the Pitocin was running from 8:20 A.M. to 10:50 A.M. ⁴ Wanda was transferred to the delivery room at approximately 9:00 A.M., where she was given a saddle block anesthetic. Following the administration of the anesthetic Johnson left the delivery room to "scrub up" for the delivery; he testified that he was gone for only two or two and one-half minutes. At approximately 9:15 A.M. Wanda was put in stirrups, and all then waited for the arrival of her baby. By 9:40 Wanda had still not delivered, and Johnson had her removed from the stirrups and laid flat on her back pending a decision on what to do next.

At 9:46 to 9:50 there was a sudden change in the contour of Wanda's abdomen, and, according to Wanda's testimony, she experienced a terrible pain in the pit of her stomach. Her abdomen then resembled the shape of an hourglass, a condition diagnosed by Johnson (and later by other experts) as a Bandl's ring, which is a strong contraction of the uterus which is not released. Expert testimony established that a Bandl's ring is the precursor of a uterine rupture. Expert testimony further established that when abnormal contractions begin to develop they may be reversed very quickly by stopping or slowing down the flow of Pitocin.

Johnson decided to take Wanda to the operating room immediately to receive a general anesthetic which would relieve the contractions; if the anesthetic was not successful, Johnson then could deliver Cherie by Cesarian section.

Wanda was taken from the delivery room at 10:05 A.M.; she arrived in the operating room at 10:15 A.M. By the time Johnson performed a Cesarian section Wanda's uterus had ruptured, ⁵ Cherie was expelled from the uterus into the abdomen, and her oxygen supply was compromised, resulting in severe and permanent brain damage. More specifically, she has a condition known as cerebral palsy.

Although Cherie is mentally alert, and she has no physical impairment, due to the anoxic condition (lack of oxygen) in which she was born, Cherie has a severe neurological impairment.

Following a trial to the jury, Cherie received a $350,000 verdict against Union, while Johnson received a verdict in his favor. Judgment was entered on the verdict in favor of Johnson, and although the trial court entered judgment on the jury's verdict in favor of Cherie and against Union, it subsequently granted Union's motion to correct errors and entered judgment in favor of Union notwithstanding the verdict in favor of Cherie.

Cherie alleges the following errors against Johnson:

(1) That the judgment is contrary to law.

(2) That the judgment is not sustained by the weight of the evidence.

(3) That the trial court erred in giving defendant's instruction number 8.

(4) That the court erred in giving defendant's instruction number 4.

Errors alleged against Union include:

(5) That the weight of the evidence does not support the granting of Union Hospital's motion for judgment on the evidence, prayed for in its motion to correct errors, but instead favors finding for the plaintiff.

(6) That the court's entry of December 1, 1976, granting Union's motion to correct errors was in violation of TR. 59(E) in that it did not show why judgment was not entered upon the evidence as is required by the rule.

(7) That the court's entry of December 1, 1976, granting Union's motion to correct errors was contrary to law in that the court misapplied the legal test for the entry of a judgment pursuant to TR. 59(E).

(8) That the court's decision in the entry of December 1, 1976, is contrary to law in that the court misapplied the legal test for the granting of a motion for judgment on the evidence pursuant to TR. 50.

(9) That TR. 59(E) and the Indiana case law allowing a judge to set aside a jury's verdict because the judge determines that the verdict is found to be clearly erroneous as contrary to or not supported by the evidence is unconstitutional under both the United States and Indiana Constitutions, as it deprives the plaintiff of her constitutional right to trial by jury.

(10) That the verdict of the jury upon which judgment was rendered against Union was inadequate.

The first two of these alleged errors assert that the weight of the evidence was against the jury's verdict in favor of Johnson, and therefore the verdict was contrary to law. As to this argument, we must set forth the often repeated appellate standard of review...